Thursday, December 31, 2009

Are you buying a home with an easement or does your home have an easement?

I was looking with a buyer at condominium units in Washington, DC and have been making casual inquires.

So, I found out that one condominium unit owner is thinking of sellingand has a garage spot,but his garage spot has an implied easement. How is this possible? The way the condominium was designed,the builder had a parking spot (this owner's spot) in the same path as the building's trash area. It is apparent that the trash can not be removed while a car is parked in the spot. So the owner must move his car out of the way every time the building has trash pick up. A major inconvenience.
This has been going on for over 20 years. This was either a structural defect by the
condominium builder or the condominium builder got greedy and tried to create as many parking spots as possible,that could be sold along with condominium units. Either way,the home buyer never thought about potential easement issues when buying the parking spot and my buyer would potnetially be buying into an easement. Apparently the owner has tried many times unsuccessfully to fight the easement.
The easement has made it very difficult for the owner to rent or sell his place. Because of the easement,this garage spot remains empty almost all of the time because of the hassle. It is unfortunate and really hurts the value of his property.

I know property owners who have yards that have been used for many years as short cuts and paths to different destinations. So, some people have claimed the area on the property as an easement.

When you are buying a home,whether a single family home or a home in a Condo/HOA community,read all of the disclosures carefully. There is a section for home owners
to fill in,answering if there are any easements.

Below is some more information about easements.

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A. An easement is a non-possessory right in the holder of an easement to make some
use of land. In other words, an easement is a “lesser” interest in the fee estate that
allows the party benefiting from the easement to make some use of the property,
such as using it for access, installation of utility lines, etc.
B. Dominant vs. Servient:
1. The “holder” of an easement right, or the party that is benefiting from the
easement, is referred to as the “dominant tenant”. Likewise, the property
benefiting from an easement is referred to as the “dominant estate” or
“dominant tenement”.
2. The party “burdened” by the easement is referred to as the “servient
tenant”. Likewise, the property burdened by the easement is the “servient
estate” or “servient tenement”.
C. Exclusive vs. non-exclusive easements
1. Because an easement right is non-possessory, it generally does not allow
the party benefited by the easement to exclude others or to stop them from
also enjoying the property. In other words, easements are generally nonexclusive.
2. However, easements can be specifically granted as exclusive easements,
allowing the holder of the easement right the ability to exclude others.
A. Appurtenant easements vs. easements in gross
1. An appurtenant easement is an easement that is intended to benefit a
particular piece of land (dominant estate/tenement) rather than a particular
individual. In this case, there is also a servient estate/tenement—the land
over which the dominant estate has its easement rights.
a. Example: An easement is granted to a shopping mall parcel for
access across the neighboring property owner’s private road in
order to allow shopping mall customers to get from the shopping
mall parking lot to the street. This is an easement appurtenant to
the shopping mall parcel, which is the dominant estate. The
neighbor who has granted the easement owns the servient estate.
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2. An easement in gross is intended to benefit a particular individual
regardless of whether she owns any land. The land over which this
individual has her easement rights is the servient estate/tenement. In the
case of an easement in gross, there may be no dominant estate/tenement.
The intent is to benefit the holder of the easement right, but the holder’s
right to use may well enhance the value of the property she uses in
connection with her exercise of an easement right.
a. EXAMPLE: Jim grants Sally an easement to fish in his pond,
which is located on his privately owned property. As part of this
easement right Sally is also granted an easement to enter onto
Jim’s property to go to and from the pond. While Sally may live
next door, she may move miles away, and the easement follows
her; NOT her property. This is an easement in gross; Sally is the
dominant tenant; Jim is the servient tenant; Jim owns the servient
estate (with the pond on it). There is NO dominant estate.
3. Most of the easements you will come across in commercial real estate
transactions are appurtenant easements.
B. Easement by implication, or quasi-easement
1. Narrow circumstances; court would be implying the easement as a matter
of law—requires a court finding that the parties had intended to create an
easement but simply failed to do so expressly
2. An implied easement can be created only when the grantor conveys a
portion of the real estate he owns or when he divides a larger tract among
separate grantees. In either case, a severance of parcels occurs, which is
a necessary prerequisite to an implied easement.
3. An easement can be implied at the time of severance ONLY if the
“easement” use existed prior to the severance. Susie owns 2 lots, one of
which fronts on a street and one of which is landlocked. Susie’s driveway
crosses both lots. Susie decides to keep the landlocked parcel and sell off
the frontage parcel. Susie forgets to reserve a driveway easement for
ingress an egress to her parcel. In order for Susie to establish that an
implied easement should be created, one of the prerequisites Susie must
prove is that she used the driveway located on the frontage property to
access her property PRIOR to the conveyance of the frontage property;
i.e., PRIOR to the severance.
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C. Easement by necessity
1. When property is divided in a way that leaves a part of the property
without access to a road (i.e., landlocked), an easement of ingress and
egress (“way by necessity”) is implied across the other part(s).
2. An easement by necessity exists only as long as the need exists. In other
words, if the landlocked property later has direct access to another public
road, the prior implied easement by necessity would go away.
D. Easement by prescription
1. Analogous to adverse possession—complicated concept but the bottom
line is this—an easement by prescription essentially follows the line of
thought that “it has been used for so many years for this purpose, an
easement, though not expressly created, was created by prescription”.
Example: Joe’s property is located between Sally’s home and the park.
Every day Sally walks across Joe’s property with her dog to get to the
park. Every day Sally walks back from the park across Joe’s property
back home. Sally has been doing this for 30 years (very old dog). Sally’s
argument that she has an easement by prescription would flow from this
type of fact pattern.
E. Affirmative and negative easements
1. An easement is affirmative when it entitles the dominant tenant to use the
servient tenement for a particular purpose, such as Sally’s right to use
Jim’s fishing pond.
2. An easement is negative when it entitles the dominant tenant to prevent
the servient tenant from using the property in a particular way. For
example, if Ralph gave Carol an easement for a view corridor across
Ralph’s property such that Carol’s view of the lake would never get
blocked, Ralph could not build a tall structure, wall or other obstruction,
or allow an obstruction (such as a tree), to hinder Carol’s rights under her
view corridor easement. This is referred to as a negative easement;
Carol’s view corridor rights allow her to compel Ralph to NOT do
F. How are easements created?
1. By express language, or grant. This is the most common method of
granting an easement: by a deed or written conveyance. “I grant you a
non-exclusive perpetual easement right to cross the westernmost 10 feet of
my property.”
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2. By reservation. In conveying land by deed, if the grantor wants to reserve
certain easement rights, another way to create that easement is by
reservation: “I convey fee interest in Lot 1 to you, Grantee, but I, Grantor,
reserve a non-exclusive easement for ingress and egress over the driveway
located on Lot 1.” This is a less common, but perfectly acceptable,
manner of creating easements.
G. Easements distinguished from licenses.
1. Easements and licenses are similar property interests, but there are some
important distinctions:
a. An easement is generally a perpetual, non-revocable right, while a
license is often revocable and is typically limited in duration.
b. An easement is insurable from a title insurance standpoint, while a
license is not typically insurable.
c. An easement is typically recorded; a license is not typically
d. Generally speaking, an easement is a more powerful property
interest than a license.
2. Requirements for creating an easement (generally the same as deed
formalities); when these formalities are not complied with, the grantee has
merely a license:
a. A written instrument
b. signed by the grantor and
c. delivered to the grantee
d. Easements are also typically recorded, which provides notice to
third parties
H. Examples of certain types of easements:
1. Short form utility easement
2. Easement for ingress and egress over someone’s property
3. Cross-access or reciprocal easement and maintenance agreement
a. Shared driveway
b. Shopping center parking area
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4. Construction easement
5. Conservation easement
6. Easement for light and/or air
a. No common law right to light or view—learn how to grow
b. Air rights use
7. Condominium/Townhome Declarations
8. Declaration of Covenants, Conditions, Restrictions and Easements
a. Shopping mall REAs
b. Mixed Use High-Rise Declaration of CC&Rs
I. One of the most important jobs a real estate lawyer has during the title and survey
review period during contract due diligence is to identify all existing easements,
both benefiting and burdening the property that the purchaser is acquiring.
1. Identify whether easement benefits or burdens the property, or both
a. If it benefits the property, make sure the easement is added as an
insured parcel under the title policy. If it is not insured, and the
purchaser is somehow deprived from its use of the easement, the
purchaser will have NO recourse against the title company. VERY
b. If it burdens the property, determine to what extent, location, etc.
2. Identify the type/nature of the easement
a. Is it a utility easement? Access easement?
b. Is the easement critical to the use of the property?
c. You need to get a full understanding of the purpose of the
easement, its function, who is benefited, whether it is necessary,
3. Ascertain the location of the easement
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a. This is one of the CRITICAL elements of the title and survey
review. If the easement is, say, a sewer line maintenance
easement, make SURE it is not located under any improvements.
If it is located under existing improvements, you must look to the
language in the easement to determine whether that is a problem
(typically anytime an easement runs under improvements that IS a
4. Identify which party has maintenance obligations, if any
a. If the easement is a cross-access easement for a driveway,
someone needs to maintain the driveway, repave it, plow it, etc.
Typically a cross easement will obligate one of the parties to
perform the maintenance and the other party will share in the
maintenance costs.
5. Identify whether there are any costs/payment obligations associated with
the easement
a. Same example regarding cross-access easement for driveway
6. Does easement provide for the right to obtain an estoppel from the other
party/parties to the easement?
a. Sometimes easements, particularly if they are complex enough,
contain rights to obtain an estoppel from the other party/parties to
the easement to verify that all fees are current, all maintenance has
been performed, there are no disputes, no pending litigation, etc.
7. Is there any way to get rid of a burdensome easement or somehow obtain
title company relief?
8. Termination
a. Unity of ownership/merger—operation of law
b. Valid written release
c. Abandonment
d. Lapse of time for easements limited in duration (such as a
temporary construction easement)
e. End of necessity
f. By default
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g. Invalidity
h. In the case of an easement by prescription, failure by the dominant
tenant (benefited party—Sally walking her 30 year old dog) to
object to unreasonable interference with the easement by the
servient tenant (Joe erects a fence across the easement area) or a
third party; if the dominant tenant (Sally) fails to enforce that right,
the easement will go away.
A. “Running with the land” is a phrase that means that, no matter who owns the real
estate, the easement (or other covenant) benefits or burdens the successor owner
of the property. In other words, a beneficial easement that runs with the land will
benefit future owners, while a burdensome easement that runs with the land will
burden future owners. In the discussion of appurtenant easements and easements
in gross, an appurtenant easement runs with the land of both the benefitted
(dominant) and burdened (servient) estates (tenements). An easement in gross
will run with the land as far as the burdened (servient) estate (tenement) is
concerned, but it will not run with the land of the benefited (dominant) estate
(tenement), because an easement in gross is personal in nature, and is not tied to
the benefited party’s property ownership.
IV. PERSONAL EASEMENTS--These are easements in gross, as discussed above. They
follow the person, not the real estate. They do NOT run with the land
A. An easement is a property right, and the benefited party has the right to enforce it
just as they would have the right to enforce a deed conveyance or another type of
land grant.
B. If the nature of the enforcement is such that the benefited estate/party is trying to
compel the burdened estate/party to honor the rights granted by the easement, the
best avenue of protection is making a title claim contemporaneously with a
demand from the other party to the easement. A necessary precursor to making
the title claim is that the easement was insured under the title policy.
C. If the nature of the enforcement is such that the burdened party is trying to compel
the benefited party to comply with the terms of the easement (such as paying
necessary share of maintenance costs), you would seek compliance like you
would in any other contractual dispute.
D. Some easements provide for arbitration as an alternative dispute resolution

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